The Trump Administration Throws Down the Gauntlet to the ICC. The Court Should Decline The Challenge.

In his speech to the Federalist Society on Monday, national security adviser John Bolton fired a broadside at the International Criminal Court, which he called “ineffective,” “unaccountable,” “deeply flawed” and “outright dangerous.” He said the ICC unacceptably threatens American sovereignty and U.S. national-security interests. He criticized the ICC prosecutor’s request to start an investigation of U.S. officials for detainee abuses in Afghanistan and elsewhere as “utterly unfounded” and “unjustifiable.” He said that the United States will “use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.” Specifically, the United States will not cooperate with the ICC and will provide no assistance to the court. And if the ICC “comes after the United States,” he said, the U.S. will “fight back” by banning its judges and prosecutors from entering the United States, freezing their assets, and prosecuting them in the U.S. criminal justice system. The U.S. will do the same for “any company or state that assists an ICC investigation of Americans.” He also said the U.S. would negotiate more binding non-surrender agreements and take steps in the U.N. Security Council to constrain the ICC.

This is obviously a full-bore attack on the ICC—more forceful than anything ever said by Bush administration officials. Even when the U.S. announced the so-called “un-signing” of the Rome Statute in May 2002 (which was actually just a simple notice to the U.N. secretary-general that the U.S. did not intend to ratify the treaty, something President Clinton had already said in December 2000), then-undersecretary of state Marc Grossman emphasized that the “United States respects the decision of those nations who have chosen to join the ICC” and that there was “common ground” with ICC members; he asked “those nations who have decided to join the Rome Treaty to meet us there.”

It is significant that John Bolton himself decided to give this address. As most people know, and as I explained in a post earlier this year, John was the architect of the Bush administration’s hardline anti-ICC policies in its first term between 2002 and 2004. In its second term, the administration moderated its position, agreeing to support the court in certain investigations—such as its investigation of the genocide in Darfur—while continuing to object strongly to purported ICC jurisdiction over Americans. For the 12 years that followed, the United States pursued a modus vivendi with court. John’s speech reflects a return to the anti-ICC policies of the Bush administration’s first term, and more.

Unfortunately, the ICC prosecutor, Fatou Bensouda, invited this attack by asking the court to open a criminal investigation of U.S. officials. This was unwise. No American administration, Republican or Democratic, would fail to respond to an actual or threatened criminal investigation of U.S. military personnel and officials or fail to warn the court about the consequences of such an investigation. And this is an election year, so this was an easy softball for the Trump administration to hit. Remember that in 2002—another election year—a majority of Democrats, including John Kerry and Hillary Clinton, voted for the American Servicemembers Protection Act, which prohibited cooperation with the Court (with certain exceptions), cut off financial assistance to countries that did not agree to non-surrender agreements, and preemptively authorized the use of military force (yes, an AUMF!) to free Americans held in the Hague.

Of course, it’s unfortunate that the Trump administration seems to have decided that, whether the court opens an investigation of U.S. officials or not, the U.S. will cease all cooperation with the ICC, even for investigations that the U.S. supports in principle, such as of the Lord’s Resistance Army in Uganda. But it’s hard to imagine any administration would continue to cooperate with the court while it was investigating U.S. officials.

John Bolton’s other threats against the ICC go much farther and seem unlikely to be implemented. It would be an extraordinary stretch of the International Emergency Economic Powers Act, or IEEPA, to declare that the ICC presented a “national emergency” justifying the blocking of the assets of its judges and prosecutors. And I am not aware of any federal criminal statute that could be used to charge ICC judges or prosecutors, much less companies or foreign governments that cooperate with the court.

John Bolton has obviously thrown down the gauntlet and challenged the ICC judges to go forward with the Afghan investigation. I can imagine that many of the judges will want to double down and not be cowed by the Trump Administration’s threats. While this might make some judges feel good, it would be counterproductive and would only hurt the court and the cause of international justice in the long run. Few people believe the prosecutor could conduct a successful trial of U.S. officials, and any investigation of the U.S. would result in a cutoff of U.S. intelligence, diplomatic and military assistance to the court and enormous pressure on U.S. allies not to cooperate. There would be significant cost to the ICC, for little gain.

The U.S.-ICC dispute cries out for a diplomatic resolution. It’s unfortunate (but not surprising in an election year) that the Trump administration did not engage in quiet diplomacy with the Court to try to work out a resolution instead of throwing down the gauntlet in public. But it’s not too late. Rather than accept the Trump administration’s challenge, the court would be wise not to act precipitously. If it does not wish to back off completely, then rather than approve the opening of the investigation requested by the prosecutor, it could quietly ask the U.S. for more information about the numerous investigations of detainee abuse the United States has already conducted. Even if the Trump administration chooses not to provide this information, the ICC might well decide that its limited resources are better directed towards investigating war crimes and crimes against humanity that are of “sufficient gravity” to justify the court’s attention, as Article 17 of the Rome Statute requires.

John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter Kaye Scholer LLP in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001.